The Netherlands: Use of armed PSCs not allowed
While piracy continues to be a problem for the commercial shipping industry, the debate on the legality of the use of private armed security guardscontinues in the Netherlands where Dutch law does not allow the use of armed PSCs.
State or Private Protection against Maritime Piracy?
As the threat of piracy continues to be a problem for the commercial shipping industry, the debate on the legality of the use of private armed security guards provided by private security companies (PSCs) that provide the necessary protection during the passage of these ships through the High Risk Area (HRA) near the coast of Somalia keeps coming back to the political arena in the Netherlands. Dutch law does not allow the use of armed PSCs.The Dutch government is of the opinion that the monopoly on the use of force belongs with the government. Instead, shipping companies can apply for protection provided by Vessel Protection Detachments (VPDs) by the Ministry of Defence. However, not all ships apply for this form of protection because the costs are too high or the procedure takes too long, or because they do not meet the required criteria. Meanwhile, the shipping industry is in fierce competition with industry in other European countries. Developments in legislation in these countries are moving towards a legalisation of the use of armed PSCs if certain criteria, for instance, with regard to vetting procedures, are met. In this report, the regulation of and legislation on the use of armed PSCs in the United Kingdom, Norway and Denmark are elaborated upon.
The reflagging of vessels is one of the options available to Dutch shipping companies in order to retain a level playing field in their competition with foreign firms. However, the number of ships that have been reflagged to a foreign country for this particular reason seems very small. Another option is to illegally hire armed PSC. Dutch shipping companies that choose this approach most likely are unable to hire certified PSCs with a long track record and a good reputation, since these companies often refuse to provide armed protection on board of ships sailing under the flag of a state that prohibits the use of armed PSCs. As a consequence, the shipping companies that nevertheless want to hire an armed PSC are left with those that do not meet the same high standards needed to pass the recognized vetting procedures; a practice that is growing.
There is as yet no internationally recognised standard to regulate the use of armed PSCs on ships. Public international law does, however, set a minimum norm, through the absolute prohibition of the use of force except in the case of self-defence. In addition, the obligation on states to respect human rights such as the right to life, and the obligation to protect rights from interference by others implies that states need to have a legislative and administrative framework in place to regulate the use of armed PSCs if this is legal according to their legislation.
After summarizing the pros and cons in the debate on the use of VPDs versus the use of PSCs, the report State or Private Protection against Maritime Piracy? concludes that continuing the current Dutch policy without any adjustments is not desirable. In order to move ahead, policy adjustments should be made. The following are the three main options:
- The use of PSCs remains illegal, but the requirements for VPD deployment should then bemore flexible, the delivery time should be shorter, and the costs should be further reduced.
- The practice of VPD deployment remains the backbone of Dutch policy, but in addition theuse of PSCs (either insourced as a government task, or privately contracted) is admittedunder strict criteria and oversight mechanisms.
- The policy of VPD deployment is no longer practised. The use of PSCs (either insourcedas a government task, or privately contracted) is made possible under strict criteria andoversight mechanisms.
For more information on the key findings of the report you can click here.
To access the full reportrefer to: State or Private Protection against Maritime Piracy?
Source: Maritime Security Review
